IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Caln-Nether Company, LP, :

Appellant :

:

v. : No. 1077 C.D. 2020

: Argued: November 15, 2021

Zoning Hearing Board of Thornbury :

Township and Thornbury Township :

BEFORE: HONORABLE MARY HANNAH LEAVITT, Judge

HONORABLE ELLEN CEISLER, Judge

HONORABLE J. ANDREW CROMPTON, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION

BY ELLEN CEISLER FILED: December 8, 2021

Caln-Nether Company, LP (Caln-Nether) appeals from an order of the Court 

of Common Pleas of Chester County (Common Pleas), dated September 24, 2020, 

denying Caln-Nether’s appeal from a decision of the Zoning Hearing Board of 

Thornbury Township (ZHB).

1 Relevant to this appeal, the ZHB denied

Caln-Nether’s application for a special exception (Application) and Caln-Nether’s 

substantive validity challenge to Section 155-13 of the Thornbury Township Zoning 

Ordinance2in effect at the time the application was filed (Current Zoning 

Ordinance). For the reasons discussed below, we affirm.

Caln-Nether owns two contiguous vacant lots (collectively, Property) located 

in the “A” Agricultural and Residential District (A District) of the Township in 

Chester County, Pennsylvania. ZHB Findings of Fact (F.F.) Nos. 3-4, 6, 11; ZHB 

1 Common Pleas also denied a cross-appeal filed by Thornbury Township (Township) from 

the ZHB’s decision. Common Pleas’ denial of the cross-appeal is not at issue before this Court.

2 Former Thornbury Township Zoning Ordinance, Chester County, Pa., as amended

(1994).
2

Decision at 24. The first lot comprising the Property, identified as UPI No. 66-3D-41 

and referred to as “Lot 1,” measures approximately 2.390 gross acres and was 

created by a subdivision plan in 1955. ZHB F.F. Nos. 5, 12. The second lot, 

identified as UPI No. 66-3D-39 and referred to as “Lot 2,” measures approximately 

3.507 gross acres and was created under a different subdivision plan in 1958. ZHB 

F.F. Nos. 5, 13. Caln-Nether purchased the Property on July 27, 2004. ZHB F.F. No. 

10.

On March 21, 2019, Caln-Nether submitted the above-mentioned Application

to the ZHB, seeking a special exception to permit the construction of a church or 

similar place of worship on the Property pursuant to Section 155-10.D(2) of the

Current Zoning Ordinance.

3 Caln-Nether also presented a substantive validity 

challenge to Section 155-13 of the Current Zoning Ordinance, which sets forth lot 

requirements for “large lots” and “small lots” located in the A District. Current 

Zoning Ordinance § 155-13. The ZHB held hearings on the Application on May 15, 

2019; June 25, 2019; July 24, 2019; and August 27, 2019.

On November 11, 2019, the ZHB issued its decision denying the Application

and Caln-Nether’s substantive validity challenge to Section 155-13 of the Current 

Zoning Ordinance. Observing that Section 155-69 of the Current Zoning Ordinance 

3 Section 155-10.D.(2) of the Current Zoning Ordinance permits a “[c]hurch or similar 

place of worship, including [a] rectory or parish house” as a use in the A District “when authorized 

by the [ZHB] as a special exception.” Current Zoning Ordinance § 155-10.D.(2). Caln-Nether was 

seeking special exception approval for purposes of marketing the Property for a church or similar 

place of worship to potential tenants or buyers, as Caln-Nether preferred to own the Property and 

lease it to a tenant. ZHB F.F. Nos. 17-18. Caln-Nether, however, did not have a proposed tenant 

or buyer at the time it submitted the Application. ZHB F.F. No. 15. It is also worth noting that, in 

addition to the instant Application, Caln-Nether separately filed two additional applications 

seeking special exception approval in relation to the Property: one application for a club/lodge use 

and one application for a school/other educational institution use. ZHB Decision at 1 n.1. Those 

applications are not at issue in this appeal.
3

governed its review of special exception applications, the ZHB concluded that 

Caln-Nether failed to satisfy Section 155-69.A, requiring the ZHB to “[g]ive full 

consideration to the size, scope, extent and character of the exception . . . desired 

and assure itself that such request is consistent with the spirit, purpose and intent of 

[Part 1 of the Current Zoning Ordinance (outlining general provisions)].” See ZHB 

Decision at 19-24; Current Zoning Ordinance § 155-69.A. In so doing, the ZHB 

observed that Caln-Nether specifically sought to construct a 64,000-square-foot 

building with a height not greater than 35 feet, along with 236 parking spaces on the 

Property. ZHB F.F. No. 14; ZHB Decision at 20. The ZHB further observed that it 

was uncontested that the Property was located in the A District and that properties 

located in that district were subject to the zoning regulations set forth in Article III, 

Sections 155-10 through 155-15 of the Current Zoning Ordinance. ZHB Decision at 

20; see Current Zoning Ordinance §§ 155-10-155-15.. Pertinent herein, Section 155-

11 of the Zoning Ordinance provides:

§ 155-11. Categories of lots in A Districts.

There shall be four categories of lots in A Districts, as 

follows:

A. A lot which was, or is hereafter, created under a 

subdivision plan approved when the minimum area 

required hereunder was or is not less than 80,000 

square feet shall be known as a “large lot.”

B. A lot which was created under a subdivision plan 

approved when the minimum area required 

hereunder was approximately 40,000 square feet 

shall be known as a “small lot.”

C. Except for cluster lots, a lot which, whether created 

by subdivision plan or otherwise, is less than 40,000 

square feet shall be known as a “nonconforming 

lot.”
4

D. A lot less than 40,000 square feet created pursuant 

to Article XVII (Cluster Residential Development 

Option), shall be known as a “cluster lot.”

Current Zoning Ordinance § 155-11 (amendment history omitted). Additionally, 

Section 155-13 of the Current Zoning Ordinance provides:

§ 155-13. Lot requirements.

The minimum area, open space, clearance and road 

frontage requirements of the large and small lots described 

in § 155-11 are as follows:

A. Large Lot.

(1)The area, exclusive of all easements, shall be at 

least 80,000 square feet, of which the buildings

shall occupy not more than 15%. Impervious 

surface coverage shall not exceed 20% of the lot 

area.

(2)There shall be a frontage of at least 250 feet, 

except in the case of a cul-de-sac, where a lot 

fronting solely or partially on the turnaround 

portion shall have a frontage of at least 125 feet.

(3)There shall be a front yard of at least 100 feet in 

depth.

(4)There shall be two side yards, each at least 50 

feet wide.

(5)There shall be a rear yard of at least 75 feet in 

depth, no more than 15% of the area of which 

may be occupied by accessory buildings.

(6)Every lot shall have a width of not less than 250 

feet at the building setback line.

B. Small lot.

(1)The area, exclusive of all easements, shall be at 

least 40,000 square feet, of which the buildings

shall occupy not more than 15%. Impervious 

surface coverage shall not exceed 20% of the lot 

area.

(2)There shall be a frontage of at least 200 feet, 

except in the case of a cul-de-sac, where a lot 
5

fronting solely or partially on the turnaround 

portion shall have a frontage of at least 125 feet.

(3)There shall be a front yard of at least 100 feet in 

depth.

(4)There shall be two side yards, each at least 30 

feet wide.

(5)There shall be a rear yard of at least 50 feet in 

depth, no more than 15% of the area of which 

may be occupied by accessory buildings.

(6)Every lot shall have a width of not less than 200 

feet at the building setback line.

Id. § 155-13 (amendment history omitted).

The ZHB first determined that the Property fell under the “small lot” category

set forth in Section 155-11(B.) of the Current Zoning Ordinance. The ZHB observed 

that Lots 1 and 2 were created in 1955 and 1958, respectively, at which time a prior 

version of the Township’s zoning ordinance—the Zoning Ordinance of 1950—was 

in effect.4 ZHB Decision at 21. The ZHB explained that, while the Zoning Ordinance 

of 1950 did not specifically state a “minimum lot area” for lots in the A District, it

did provide the following minimum dimensional requirements, setbacks, and depths 

that all lots located in that district were required to have: (1) a front yard with a 

minimum depth of 100 feet, (2) 2 side yards with a minimum width of 30 feet, (3) a 

rear yard with a minimum depth of 75 feet, and (4) a minimum lot frontage of 200 

feet. ZHB Decision at 21-22; Reproduced Record (R.R.) at 119a. Using these 

minimum requirements, and assuming a “zero[-]square-foot building envelope,” the 

4 The Zoning Ordinance of 1950 was the first zoning ordinance adopted in the Township, 

and it likewise identified the Property as being located in the A District of the Township. ZHB 

F.F. No. 22.b. Former Thornbury Township Zoning Ordinance, Chester County, Pa., as amended

(1950).
6

ZHB reasoned that the minimum lot area for lots in the A District under the Zoning 

Ordinance of 1950 would be 35,000 square feet.5 ZHB Decision at 21-22.

Observing that Section 155-11.B. of the Current Zoning Ordinance deemed

“lots which were created under a subdivision plan approved when the minimum area 

required was approximately 40,000 square feet as ‘small lots,’” and in light of its 

conclusion that the minimum lot area for lots in the A District under the Zoning 

Ordinance of 1950 would be 35,000 square feet (as calculated by the ZHB), the ZHB 

concluded that the Zoning Ordinance of 1950 “did, in effect, set forth a minimum 

lot area for lots in the ‘A’ District that was ‘approximately 40,000 square feet.’”

ZHB Decision at 22 (emphasis in original). Thus, according to the ZHB, Lots 1 and 

2 were “small lots” pursuant to Section 155-11.B. of the Current Zoning Ordinance.6

Id.

The ZHB continued by reasoning that, as two “small lots,” the Property was 

subject to the provisions of Section 155-13.B.(1) of the Current Zoning Ordinance, 

which limited building coverage to a maximum of 15% of the lot area and 

impervious surface coverage to a maximum of 20% of the lot area. The ZHB further 

noted that, while Caln-Nether “was vague as to whether it intended to merge the two 

‘small lots’ into one new lot” of 5.897 acres, even if Caln-Nether did merge the lots,

that new lot would be deemed a “large lot” under Section 155-11.A. of the Current

Zoning Ordinance and would be subject to the same maximum building coverage 

and impervious surface coverage limits of 15% and 20%, respectively. ZHB 

5 By way of further explanation, the ZHB added the 100-foot front yard requirement to the 

75-foot rear yard requirement to obtain a total yard depth of 175 feet. The ZHB then multiplied 

the 175-foot-yard depth by the 200-foot frontage requirement to yield a total of 35,000 square feet.

6 The ZHB further supported its conclusion by noting that it was consistent with the 

Township’s Zoning Map, which designated Lots 1 and 2 as “small lots.” ZHB Decision at 22-23.
7

Decision at 23. Caln-Nether’s proposed plan, however, provided a building coverage 

of 24.91% and an impervious surface coverage of 64.77%. Id. The ZHB observed

that “[t]hese coverages are inconsistent with the ‘A’ District area and bulk

regulations for either a ‘small lot’ or a new ‘large lot’ and far exceed the permitted 

development of the Property under the Current Zoning Ordinance.” Id. As such, the 

ZHB concluded that Caln-Nether failed to satisfy the requirement of 

Section 155-69.A. of the Zoning Ordinance, “as the size, scope, extent and character 

of the proposed church or other similar place of worship exceeds that which is 

permitted by the Current Zoning Ordinance.”7Id. Because the ZHB determined that 

Caln-Nether failed to demonstrate compliance with the Current Zoning Ordinance, 

the ZHB denied the Application.

The ZHB also rejected Caln-Nether’s substantive validity challenge to 

Section 155-13 of the Current Zoning Ordinance. As noted by the ZHB, Caln-Nether 

argued that: (1) Section 155-13’s “small lot” area and bulk requirements were unduly 

restrictive such that it was not feasible to construct a compliant church building on 

the Property; (2) there were “no parking standards governing the church use” and 

“no parking standards whatsoever” in the Current Zoning Ordinance, rendering the 

Current Zoning Ordinance unconstitutionally vague and turning any attempt by the 

Township to “make up its own standards” into an unreasonable limit on religious 

activities and structures; and (3) the “unduly restrictive” area and bulk regulations 

and lack of parking standards were in violation of the Religious Land Use and 

7 The ZHB also concluded that Caln-Nether failed to satisfy certain special exception 

standards in Section 155-69 of the Current Zoning Ordinance on the basis that Caln-Nether’s use 

of the Property, as proposed, would have a negative effect on traffic congestion and result in a 

degradation of the level of service at the intersection where the Property was located. ZHB 

Decision at 23-24.
8

Institutionalized Persons Act of 2000 (RLUIPA),

8

as they “unreasonably limit 

religious assemblies, institutions, or structures.” ZHB Decision at 27.

The ZHB first reasoned that, while Caln-Nether argued that Section 155-13 

of the Current Zoning Ordinance was vague, ambiguous, arbitrary, and impossible 

to comply with as to the proposed special exception use, both Caln-Nether’s and the 

Township’s civil engineering experts testified that it was possible to construct a 

church or other similar place of worship in compliance with Section 155-13’s 

regulations. ZHB Decision at 28. Specifically crediting the testimony of the 

Township’s civil engineering experts indicating that it was possible to construct a 

church on the Property in compliance with the area and bulk regulations of the A 

District, the ZHB also credited the testimony of the Township’s land planning expert

insofar as he stated that the Property was appropriate for a church or similar place of 

worship, but that Caln-Nether’s 64,000-square-foot building was not appropriate for 

the Property. Id. The ZHB noted that even Caln-Nether’s counsel conceded that his 

own engineer testified that it would be feasible to construct an approximately 

13,000-square-foot building for a church or other similar place of worship use, and

reasoned that the Township was not required to permit, by zoning, the largest 

possible church or place of worship. Id. The ZHB added that Caln-Nether failed to 

introduce sufficient evidence that the regulations in Section 155-13 were arbitrary, 

instead concluding that they were intended to address legitimate health, safety, and 

welfare concerns of the Township. Id. at 29. The ZHB concluded that even the 

regulations applicable to a “small lot” would permit the construction of at least a 

5,000-square-foot building to house a church or other similar place of worship. Id.

Thus, according to the ZHB, Section 155-13 was not vague, ambiguous, or arbitrary, 

8

42 U.S.C. §§ 2000cc-2000cc-5.
9

and it did not make it impossible to construct a church or other similar place of

worship in compliance with the Current Zoning Ordinance.

The ZHB also rejected Caln-Nether’s argument that Section 155-13 of the 

Current Zoning Ordinance was substantively invalid because the Current Zoning 

Ordinance did not include parking standards governing a church use. The ZHB 

reasoned that there were parking regulations governing uses in the A and B Districts 

set forth in Section 155-87 of the Current Zoning Ordinance.9 ZHB Decision at 29.

The ZHB observed that Caln-Nether did not challenge the substantive validity of 

Section 155-87, nor did Caln-Nether introduce sufficient evidence that the parking 

regulations in that provision were “so unduly restrictive that they ma[de] it 

impossible for [Caln-Nether] to construct a church of some size with associated 

parking on the Property.” Id. at 30. The ZHB added that there was no requirement 

in the Pennsylvania Municipalities Planning Code (MPC)10 that a zoning ordinance 

must include “parking standards governing a church use” and that, while CalnNether argued that the Township could not “just ‘make up its own standards’ in its 

own discretion,” Caln-Nether “failed to introduce evidence that the Township had 

9 Section 155-87 of the Current Zoning Ordinance provides, in relevant part:

§ 155-87. Parking areas.

A. For every house in A Districts hereafter erected there 

shall be provided at least one parking area, either enclosed 

or open, situated completely off the right-of-way of the street 

or road upon which said premises abuts, which parking area 

shall be at least 400 square feet in area and with an outlet to 

a street or road abutting the property.

B. In B Districts there shall be at least 200 square feet of 

parking space for every 200 square feet of commercial floor 

area of any store or commercial building hereafter erected.

Current Zoning Ordinance § 155-87.

10 Act of July 31, 1968, P.L. 805, as amended, 53 P.S. §§ 10101-11202.
10

endeavored to ‘make up its own standards’ for parking requirements for a church 

use.” Id. at 29. 

Finally, the ZHB addressed Caln-Nether’s contention that applying the 

building coverage and impervious surface coverage limitations from Section 155-13 

of the Current Zoning Ordinance to a church use imposes a substantial burden on 

and unreasonably limits religious activity in violation of the RLUIPA. The ZHB 

reasoned that, while Caln-Nether relied upon Islamic Society of Basking Ridge v. 

Township of Bernards, 226 F. Supp. 3d 320 (D.N.J. 2016), in support of its position, 

that case was distinguishable. The ZHB specifically noted that, in Islamic Society of 

Basking Ridge, the township involved was found to have applied a parking ordinance 

that was facially valid with sufficient intent to discriminate against a special 

exception applicant on the basis of religion. The ZHB reasoned that, here, the 

Current Zoning Ordinance permitted churches or similar places of worship without 

distinction between different faiths, all permitted uses in the A District were subject 

to the regulations in Section 155-13 and Section 155-87 of the Current Zoning 

Ordinance, and the “church or similar place of worship” use was not subject to any 

additional or different regulations from other permitted uses in the A District. ZHB 

Decision at 30-31. Further, Caln-Nether failed to introduce evidence that the 

Township was, in fact, “making up its own standards” and applying them to the 

proposed church use. Id. at 31. The ZHB concluded that, based on the evidence 

presented by Caln-Nether, the building coverage and impervious surface coverage 

limitations in Section 155-13 were not so restrictive as to impose a substantial 

burden on religious activities in violation of the RLUIPA. Id.

Caln-Nether appealed from the ZHB’s decision to Common Pleas, which

denied Caln-Nether’s appeal. While Common Pleas held that the ZHB erred in 
11

concluding that the Property fell within the definition of a “small lot,”

11 Common 

Pleas observed that, whether a “small lot” or “large lot” in the A District, all are 

bound by the same 15% building coverage and 20% impervious surface coverage 

requirements under Section 155-13 of the Current Zoning Ordinance. Common 

Pleas Decision at 14. As the Application provided for 24.91% building coverage and 

64.77% impervious surface coverage, Common Pleas found that Caln-Nether failed 

to satisfy the objective requirements of the Current Zoning Ordinance and that the 

ZHB properly denied the special exception requested on that ground.12 Id. at 13-14. 

Additionally, Common Pleas held that the ZHB properly rejected Caln-Nether’s

substantive validity challenge to Section 155-13 of the Current Zoning Ordinance.

Id. at 16-19. This appeal followed.

On appeal,13 Caln-Nether argues that the ZHB erroneously concluded that 

Caln-Nether failed to meet the special exception standards for a proposed church 

11 Common Pleas reasoned that the Zoning Ordinance of 1950 did not identify a minimum 

lot requirement and that the ZHB’s application of other minimum requirements set forth therein to 

create an otherwise non-existent minimum dimension was improper. Common Pleas observed that 

“the exercise engaged in by the ZHB in support of its conclusion . . . can yield lots ranging in size

from 26,000 [square] feet to 35,000 [square] feet,” which “in turn could result in lots defined as 

small lots or even nonconforming lots under the [Current Zoning] Ordinance.” Common Pleas 

Decision at 12. Common Pleas also concluded that the ZHB erred insofar as it relied upon the 

Township Zoning Map designation to classify the Property as a “small lot,” reasoning that the 

purpose of a zoning map is limited to delineating zoning district boundaries. Id. at 12-13 (relying 

upon Tohickon Valley Transfer, Inc. v. Tinicum Twp. Zoning Hearing Bd., 509 A.2d 896, 904 (Pa. 

Cmwlth. 1986)).

12 Common Pleas also concluded that the ZHB improperly denied the Application based 

on traffic concerns, as “the record did not support a finding . . . that there is a high probability that 

the proposed use will generate traffic not normally generated by the type of use and that the 

abnormal traffic threatens safety.” Common Pleas Decision at 16.

13 When, as in the present case, the trial court takes no additional evidence, this Court’s 

review is limited to determining whether the zoning hearing board committed an error of law or 

abused its discretion. Dunbar v. Zoning Hearing Bd. of City of Bethlehem, 144 A.3d 219, 223 n.4 
12

use. Caln-Nether also contends that the ZHB improperly concluded that application 

of the “small lot” requirements did not unreasonably restrict religious assemblies, 

institutions, and structures in violation of RLUIPA.

This Court has observed as follows with respect to special exceptions:

[A] special exception is not an exception to a zoning 

ordinance but, rather, is a conditionally permitted use, 

allowed by the legislature if specifically listed standards 

are met. [An a]pplication for a special exception is to be 

granted or denied by the ZHB pursuant to the express 

standards and criteria set forth in the applicable zoning 

ordinance. Thus, what an applicant must demonstrate to 

obtain a special exception is determined on a case-by-case 

basis and will vary among municipalities based upon the 

use requested and the language in the ordinance. Once the 

applicant for a special exception meets his initial burden 

of showing compliance with all the objective requirements 

of the zoning ordinance, it is presumed that the proposed 

use is consistent with the promotion of local concerns 

relating to general health, safety and welfare, . . . and, 

normally, the burden then shifts to any objectors to prove 

that the proposed use is, in fact, detrimental to the health, 

safety and general welfare of the community.

(Pa. Cmwlth. 2016). An abuse of discretion occurs when the zoning hearing board’s findings are 

not supported by substantial evidence, “which is such relevant evidence that a reasonable person 

would ‘accept as adequate to support a conclusion.’” Id. (quoting Valley View Civic Ass’n v. 

Zoning Bd. of Adjustment, 462 A.2d 637, 640 (Pa. 1983)). Further, “[w]here an appeal presents 

issues of law, including issues of statutory interpretation, this Court’s scope of review is plenary 

and our standard of review is de novo.” Marshall v. East Bradford Twp. Bd. of Supervisors, 250 

A.3d 481, 487 n.5 (Pa. Cmwlth.) (quoting 1050 Ashbourne Assocs., LLC v. Cheltenham Twp. Bd. 

of Comm’rs, 167 A.3d 828, 831 n.6 (Pa. Cmwlth. 2017)), appeal denied (Pa., No. 231 MAL 2021, 

filed Oct. 14, 2021). “Because we review the ZHB’s decision, we do not address any argument 

related to the trial court’s decision.” Pham v. Upper Merion Twp. Zoning Hearing Bd., 113 A.3d 

879, 887 (Pa. Cmwlth. 2015).
13

Elizabethtown/Mt. Joy Assocs., L.P. v. Mount Joy Twp. Zoning Hearing Bd., 934 

A.2d 759, 764 (Pa. Cmwlth. 2007) (footnote omitted) (citations omitted).

14

Caln-Nether challenges the ZHB’s conclusion that the Property is a “small 

lot” under Section 155-11.B. of the Current Zoning Ordinance. Taking the position 

that the determination “turns on the size of the lot at the time it was created or 

subdivided,” Caln-Nether argues that the Property does not meet the definition of 

“small lot” provided in Section 155-11.B. of the Current Zoning Ordinance. CalnNether adds that Lots 1 and 2 were created at a time when there was no minimum 

lot requirement provided in the operative zoning ordinance (i.e., the Zoning 

Ordinance of 1950) and before any such minimum was ever required or “small lot” 

category ever existed. Caln-Nether faults the ZHB for using other minimum 

requirements contained in the Zoning Ordinance of 1950 to “contrive” an otherwise 

unidentified minimum lot requirement that was neither established by that ordinance 

in fact nor based on the definition of “small lot” in the Current Zoning Ordinance.

As such, Caln-Nether contends, the ZHB impermissibly added language that did not 

otherwise exist to reach a result inconsistent with the plain terms of the Current 

Zoning Ordinance. Caln-Nether also echoes the trial court’s observation that the 

ZHB improperly relied upon the Township Zoning Map designation in support of its 

conclusion. Caln-Nether, thus, argues that the ZHB’s finding that the Property is a 

“small lot” was clearly in error and was not supported by substantial evidence, as 

determined by the trial court.

14 “An ordinance . . . may alter th[e above] general presumption by providing that the 

burden rests on the applicant with regard to issues of detriment to the health, safety and welfare of 

the community. However, in such a case, the applicant bears the burden of persuasion only, and 

the objectors retain the burden of production with respect to the general matter of detriment to 

health, safety and public welfare.” Elizabethtown/Mt. Joy Assocs., L.P., 934 A.2d at 764 n.6 

(citations omitted).
14

The Township counters that the ZHB properly concluded that Caln-Nether 

failed to meet the objective requirements of the Current Zoning Ordinance for a 

special exception for a church use. In support, the Township contends that the same 

15% building coverage and 20% impervious surface coverage limitations apply to 

all lots in the A District and, thus, the lot type of the Property—which has been zoned 

in the A District since 1950—is irrelevant to the issue of whether Caln-Nether is 

entitled to the special exception sought. The Township adds that Caln-Nether 

conceded that Lots 1 and 2 would have to be consolidated prior to land development; 

thus, upon consolidation, the new lot will fit within the definition of a “large lot”

and nonetheless be subject to the same 15% building coverage and 20% impervious 

surface coverage requirements. The Township also contends that we should affirm 

the trial court’s decision on this issue because Caln-Nether has waived it for failing 

to cite any legal authority in support of its claim. 

The ZHB has also filed a brief in which it argues that it properly denied 

Caln-Nether’s Application because the church building proposed by Caln-Nether 

failed to meet the Township’s building and impervious surface coverage 

requirements. The ZHB first emphasizes that all lots in the A District must fall under 

one of the categories outlined in Section 155-11 of the Current Zoning Ordinance.

The ZHB notes that the Property does not qualify as a “nonconforming lot” or 

“cluster lot” under that provision, as those categories turn on the size of the lot itself 

and require the lot to be less than 40,000 square feet. The ZHB further submits the 

“small lot” and “large lot” categories are not based on actual lot size, but rather by 

the minimum size permitted by the applicable ordinance in effect at the time of the 

lot’s creation. The ZHB observes that Lots 1 and 2 were created under the Zoning 

Ordinance of 1950, which imposes various dimensional requirements that can be 
15

used to calculate a minimum lot size. The ZHB also cites to Section 602 of the 

Zoning Ordinance of 1950, which provides that “[n]o lot area shall be reduced, nor 

shall any property be so sold or divided so as to make the open spaces about the 

buildings thereon smaller than the distances required by this Ordinance.” See R.R. 

at 122a; Zoning Ordinance of 1950 § 602. Using these requirements and assuming a 

rectangular lot with no building, the ZHB concluded that the minimum lot size 

imposed by the Zoning Ordinance of 1950 was 35,000 square feet. The ZHB 

contends that, under the unique circumstances of this case, the minimum lot area 

imposed by the Zoning Ordinance of 1950 qualifies as “approximately 40,000 square 

feet” for purposes of Section 155-11 of the Current Zoning Ordinance; thus, the 

Property is indeed made up of two “small lots.”15

The ZHB adds that, while not determinative, the Township’s Zoning Map’s

indication that the Property was comprised of small lots is probative of the 

Township’s interpretation, which is entitled to deference. The ZHB further notes that 

the map is a legislative component of the Current Zoning Ordinance through 

incorporation by reference. The ZHB also argues that the small lot category is the 

best fit for the Property and that the alternative would be to create a “phantom fifth 

category not contemplated by the [Current] Zoning Ordinance which escapes area 

and bulk requirements altogether” and is improper. ZHB’s Br. at 19. The ZHB also 

claims that Caln-Nether represented that it intended to consolidate Lots 1 and 2 as 

15 The ZHB argues that, to the extent Caln-Nether purported to demonstrate to Common 

Pleas that the minimum lot size could actually fall as low as 26,000 square feet, Caln-Nether’s 

calculations suffer from legal or mathematical errors or could not otherwise be verified. The ZHB 

adds that, even if Caln-Nether’s calculations were correct, those calculations nonetheless 

demonstrate the error in Common Pleas’ conclusion that “no” minimum lot size exists in the 

Zoning Ordinance of 1950. We note that Caln-Nether presents no argument to this Court regarding 

the accuracy of the ZHB’s calculations using the minimum dimensions in the Zoning Ordinance

of 1950, nor does it present any other potential minimum lot sizes using those dimensions.
16

part of its development plan and argues that, once consolidated, the Property would 

be considered a “large lot.” The ZHB contends that the proposed plan providing for 

24.91% of building coverage and 64.77% impervious surface coverage is

inconsistent with the area and bulk regulations for either a small lot or large lot and, 

thus, the ZHB properly concluded that Caln-Nether failed to satisfy the requirements 

for special exception approval.

Turning to our analysis, we note that the principles of statutory construction 

also guide our interpretation of a zoning ordinance. Bloomsburg Indus. Ventures,

LLC v. Town of Bloomsburg, 242 A.3d 969, 979 (Pa. Cmwlth. 2020). Our primary 

objective is to determine the intent of the legislative body that enacted the ordinance.

Id. In this regard, “we are mindful that an ordinance’s plain language generally 

provides the best indication of legislative intent.” THW Grp., LLC v. Zoning Bd. of

Adjustment, 86 A.3d 330, 336 (Pa. Cmwlth. 2014). Further, “[w]ords and phrases 

shall be construed according to rules of grammar and according to their common and 

approved usage.” 1 Pa. C.S. § 1903(a). Additionally, every ordinance shall be 

construed, if possible, to give effect to all its provisions so that no provision is “mere 

surplusage.” 1 Pa. C.S. § 1921(a). Where the words in an ordinance are free from all 

ambiguity, the letter of the ordinance may not be disregarded under the pretext of 

pursuing its spirit. 1 Pa. C.S. § 1921. Moreover, “zoning ordinances must be 

construed expansively so as to afford the landowner the broadest possible use and 

enjoyment of his land. THW Grp., LLC, 86 A.3d at 336.

Having considered the parties’ arguments, we conclude that the ZHB did not 

err or abuse its discretion in concluding that Lots 1 and 2 comprising the Property 

are “small lots” under Section 155-11.B. of the Current Zoning Ordinance and must 

comply with the 15% building coverage and 20% impervious surface coverage 
17

requirements for such lots set forth in Section 155-13.B.(1) of the Current Zoning 

Ordinance. It is undisputed that Lots 1 and 2 were created by subdivision in 1955 

and 1958, respectively, and have always been located in the A District. Section 155-

11 of the Current Zoning Ordinance provides that “[t]here shall be four categories 

of lots in A Districts,” including “large lots,” “small lots,” “nonconforming lots,” 

and “cluster lots.” Current Zoning Ordinance § 155-11. A plain reading of Section 

155-11 of the Current Zoning Ordinance reveals that “nonconforming lots” and 

“cluster lots” turn on the size of the lot at issue and requires the lot to be less than 

40,000 square feet. Lot 1, which is 2.390 acres, and Lot 2, which is 3.507 acres, are 

more than 40,000 square feet and thus cannot be “nonconforming lots” or “cluster 

lots.”

Unlike “nonconforming lots” and “cluster lots,” and contrary to Caln-Nether’s 

position, “large lots” and “small lots” do not turn on the actual size of the lot at issue 

at any given time. Rather, we agree with the ZHB that Section 155-11.A. and B. of 

the Current Zoning Ordinance make that determination dependent upon the 

minimum lot size required by the zoning ordinance in effect at the time the lot was 

created, irrespective of the actual size of the lot. At the time Lots 1 and 2 were 

created, the Zoning Ordinance of 1950 was in effect. While the Zoning Ordinance 

of 1950 did not provide a total “minimum lot area” for particular lots in the A

District, it did provide minimum dimensional, setback, and depth requirements for

such lots. Using these minimum requirements, and assuming a “zero[-]square-foot 

building envelope,” the ZHB calculated that the minimum lot area for lots in the A 

District under the Zoning Ordinance of 1950 would be 35,000 square feet—or 

“approximately 40,000 square feet”—thereby satisfying the definition of a “small 

lot” under Section 155-11.A. of the Current Zoning Ordinance. As such, the ZHB 
18

determined that the Property consisted of two “small lots” and would be subject to 

the area and bulk restrictions for “small lots” under Section 155-13.B.(1) of the 

Current Zoning Ordinance.

The ZHB’s conclusions are supported by the record and the language of the 

ordinances at issue. Caln-Nether fails to persuade us otherwise, particularly under 

the circumstances of this case, where the alternatives appear to be subjecting the 

Property either to no area and bulk requirements or the bulk and area requirements

that pertain to a district in which the Property is not located. Moreover, our 

conclusion is bolstered by the fact that Caln-Nether does not dispute that it either 

will consolidate—or be required to consolidate—Lots 1 and 2 prior to land 

development, at which point the Property would fall under the “large lot” category 

set forth in Section 155-11.A. of the Zoning Ordinance and still be subject to the 

same 15% building coverage and 20% impervious surface coverage requirements.

Thus, we conclude that the ZHB did not abuse its discretion or commit an error of 

law in rendering its decision. Caln-Nether is not entitled to relief on this claim.

16

Caln-Nether next argues that the ZHB improperly concluded that application 

of the “small lot” requirements did not unreasonably restrict religious assemblies,

institutions, and structures in violation of the RLUIPA. Specifically relying upon 

Section 2000cc(b)(3) of the RLUIPA,17 a portion of what is known as the 

16 In connection with the issue of whether the ZHB properly denied Caln-Nether’s 

Application, the parties also present argument regarding whether the ZHB improperly denied the 

Application based on traffic concerns. Given our disposition above that the ZHB did not err or 

abuse its discretion in denying the Application based on its conclusions regarding Caln-Nether’s 

noncompliance with the building coverage and impervious surface coverage requirements, we 

need not address the parties’ arguments as they relate to the ZHB’s denial of the Application based 

on traffic concerns.

17 While Caln-Nether quotes from Section 2000cc(b)(3) of the RLUIPA, it mistakenly cites 

the provision as “Section 2000cc(3).” That provision provides that “[n]o government shall impose 
19

“Exclusions and Limits” provision, Caln-Nether argues that “[a]pplying the ‘small 

lot’ [restrictions] . . . when they clearly do not apply substantially impedes the ability 

to construct a viable church facility and unreasonably limits religious activities” in 

violation of the RLUIPA. Caln-Nether’s Br. at 23-24. Caln-Nether also contends that 

the ZHB improperly found that Caln-Nether failed to meet the minimum parking 

spaces for a proposed church when the Current Zoning Ordinance contained no such 

standards. Again relying upon Islamic Society of Basking Ridge, Caln-Nether also 

claims that, given that there are no parking standards governing its proposed church 

use, “the Township cannot just make up its own standards or apply what it thinks is 

appropriate in its own discretion” because that “would unreasonably limit religious 

activities and structures.” Id. at 24.

The Township counters that the ZHB properly concluded that application of 

the A District area and bulk regulations to the Property did not impose an 

unreasonable restriction on religious assemblies, institutions, or structures in 

violation of the RLUIPA. The Township argues that the building coverage and 

impervious surface coverage limitations in Section 155-13 of the Current Zoning 

Ordinance apply uniformly to all structures in the A District. The Township adds 

that, as the record demonstrates, a church or similar place of worship of 

approximately 14,000 square feet could be constructed on the Property in conformity 

with the Current Zoning Ordinance, which thereby renders Caln-Nether’s argument 

“specious.” Township’s Br. at 19.

The ZHB contends that “it is impossible to tell how merely applying ‘small 

lot’ standards is a violation of [the] RLUIPA” particularly when Caln-Nether has 

or implement a land use regulation that[] . . . unreasonably limits religious assemblies, institutions, 

or structures within a jurisdiction.” 42 U.S.C. § 2000cc(b)(3).
20

conceded that it would be bound by the same restrictions under the “large lot” 

category once it is “forced to reverse-subdivide the lots[.]” ZHB’s Br. at 27. The 

ZHB also claims that the record makes clear that multiple other religious enterprises 

are located in the same zoning district and comply with the same area and bulk 

regulations without issue. Finally, the ZHB notes that, insofar as Caln-Nether argues 

that the ZHB improperly found that Caln-Nether failed to meet the minimum parking 

spaces for a proposed church, that contention is factually incorrect. The ZHB did not 

conclude that Caln-Nether failed to meet the minimum parking spaces for a proposed 

church and did not deny the Application on that ground.

Assuming arguendo that Caln-Nether has standing to assert such a claim,

18

we are unpersuaded by its contention that the ZHB’s application of the “small lot” 

requirements in this situation violated the RLUIPA. First, as concluded above, the 

ZHB properly determined that the “small lot” limitations do apply to the Property.

Moreover, we agree with the ZHB that Caln-Nether fails to demonstrate how merely 

applying the “small lot” standards to the Property is a violation of the RLUIPA, 

under the Exclusions and Limits provision or otherwise. In this regard, Caln-Nether 

does not challenge the ZHB’s determinations that a church or similar use can be 

constructed on the Property under the Current Zoning Ordinance. Moreover, CalnNether does not dispute that it will—either by choice or requirement—consolidate 

Lots 1 and 2 prior to development, at which point the same area and bulk limitations 

would apply pursuant to the “large lot” provisions of Section 155-13 of the Current

18 Both the Township and ZHB presented arguments challenging Caln-Nether’s standing 

to bring a claim under the RLUIPA or otherwise question Caln-Nether’s eligibility for RLUIPA 

protection; neither Caln-Nether nor the tribunals below have addressed such arguments. Further, 

given our disposition of Caln-Nether’s RLUIPA-based claim as outlined herein, we likewise need 

not address those arguments here.
21

Zoning Ordinance. Tellingly, Caln-Nether does not argue that the same coverage 

limitations as applied to “large lots” violate the RLUIPA.

Additionally, though Caln-Nether relies upon Islamic Society of Basking 

Ridge to support its arguments that the Current Zoning Ordinance contains no 

parking standards for a church use and that the Township cannot “make up” such

standards as it pleases, we note that the MPC does not mandate that zoning 

ordinances contain parking standards for a church use. Further, Section 155-87 of 

the Current Zoning Ordinance sets forth the parking requirements governing uses in 

the A and B Districts, and Caln-Nether did not challenge the substantive validity of 

Section 155-87 before the ZHB. In addition, Caln-Nether “failed to introduce 

evidence that the Township had endeavored to ‘make up its own standards’ for 

parking requirements for a church use.” ZHB Decision at 29. Finally, while CalnNether claims that the ZHB improperly found that Caln-Nether failed to meet the 

minimum parking spaces for a proposed church, we agree with the ZHB that it made 

no such determination and did not deny Caln-Nether’s Application on that basis.

Caln-Nether, therefore, has likewise failed to persuade this Court that it is entitled 

to relief on this issue.

For the reasons stated, we affirm the order of Common Pleas, albeit on 

somewhat different grounds with respect to the first issue on appeal.

ELLEN CEISLER, Judge

Judge Fizzano Cannon did not participate in the decision of this case. 
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Caln-Nether Company, LP, :

Appellant :

:

v. : No. 1077 C.D. 2020

:

Zoning Hearing Board of Thornbury :

Township and Thornbury Township :

O R D E R

AND NOW, this 8

th day of December, 2021, the order of the Court of 

Common Pleas of Chester County, dated September 24, 2020, is hereby 

AFFIRMED.

ELLEN CEISLER, Judge